Streaming from iPad.
How the Missouri suicide case played out ... MySpace terms of service says you can't put fake info on your profile - which means the mother who created the fake profile violated the Computer Fraud & Abuse Act. The judge said that anyone who writes a contract gets to decide what is illegal - and the terms can change willy nilly. -- Marcia Hofmann, #EFF
Three cases: Facebook v Power Ventures, US v Drew and US v Nosal -- civil dispute as well as criminal disputes -- one of the difficult things this law is both civil and criminal.
Definition of what it means to "have authorization" is important - Marcia Hofmann points out that if Aaron had been judged to have authorization many charges would have been moot
Orin Kerr has several ideas about how to fix problems with CFAA - define "without authorization" and eliminating "exceeding authorized access" (to ensure breach of contract isn't a CFAA violation)
EFF wants to make penalties match offenses - make more first time offenses misdemeanors
Aaron's Law - draft bill would clarify that violating a contract doesn't violate the CFAA or wire fraud law.
There is a fundamental difference between bits and apples. But we have decided to treat them the same under the law ... fundamentally rivalrous versus non-rivalrous
$150,000 x 10 = $1.5 million in penalties for a 10-song mix tape. The US Gov't choses to enforce the law against people it doesn't like even though many people are involved in the same infringement.
Marcia - the criminal aspect of the law does not require damage - civil case requires $5K in damage - the term "damage" is defined in the statute with extremely low threshold
Marcia makes the point that examples/anecdotes have other legal forms of recourse (speaking to CFAA becoming criminal only)
Q: why isn't this an ethics issue - lots of laws are written broadly that allow police misconduct / abusive discretion. Wasn't this just a grotesque display of prosecutorial overreach.
Vast majority of criminal defendants do not go to trial because power is on the prosecutor's side. Ratchet up potential punishment the closer you get to trial to get people to "take their lumps" - Marcia Hofmann -- criminal justice system is not set up for people to defend their innocence.
Marcia just mentioned Quinn Norton's article in TheAtlantic from yesterday: http://www.theatlantic.com/technology/archive/13/03/life-inside-the-aaron-swartz-investigation/273654/?single_page=true
Macia is now talking about Sony Playstation Network and how Sony cut/can shut down access to their own games. Brian - the issue of authorization -> companies are trying to control access to devices - example of pocket watch versus iPhone
Marcia - good question without an answer. Brian - technology can inform law - the law needs an iterative design process like tech.
Marcia - sustained interest in Congress since Aaron's suicide - it looks like a bill might be introduced but DOJ does not want to "water down" CFAA - ditto businesses. "Even the companies that would never make the lame contract argument" aren't signed up to change the law.
Marcia - there have been proposals to make penalties of CFAA much harsher - with mandatory minimum sentences - Administration has supported this.
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